The UCL Practitionerhttp://www.uclpractitioner.com/
The first and only weblog on California’s Unfair Competition Law and California class actions by Kimberly A. Kralowecen-USFri, 08 Dec 2017 04:00:00 -0800http://www.typepad.com/http://www.rssboard.org/rss-specificationNinth Circuit appealability opinion: <em>Brown v. Cinemark USA, Inc.</em>http://www.uclpractitioner.com/2017/12/ninth-circuit-appealability-opinion-brown-v-cinemark-usa.html
http://www.uclpractitioner.com/2017/12/ninth-circuit-appealability-opinion-brown-v-cinemark-usa.htmlIn Brown v. Cinemark USA, Inc., ___ F.3d ___ (9th Cir. Dec. 7, 2017), the Ninth Circuit held that the plaintiffs could pursue their appeal from the district court's order denying class certification, even though they had settled their individual...<p>In <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/07/16-15377.pdf"><em>Brown v. Cinemark USA, Inc.</em></a>, ___ F.3d ___ (9th Cir. Dec. 7, 2017), the Ninth Circuit held that the plaintiffs could pursue their appeal from the district court&#39;s order denying class certification, even though they had settled their individual claims, because the settlement was not a &quot;sham tactic&quot; to create an appealable judgment.&#0160;&#0160;</p>
<p>In so holding, the panel distinguished <a href="https://scholar.google.com/scholar_case?case=7720895453869348285"><em>Microsoft Corp. v. Baker</em></a>, 137 S. Ct. 1702 (2017) (discussed in <a href="http://www.uclpractitioner.com/2017/06/us-supreme-court-addresses-appealability-of-class-certification-rulings-microsoft-corp-v-baker.html">this blog post</a>):&#0160;</p>
<blockquote>
<p>Unlike the plaintiffs in <em>Baker</em>, Brown and De La Rosa continued litigating their remaining individual claims after the district court denied class certification. Some of these individual claims resolved in favor of Defendants and some resulted in settlement. No facts suggest that Brown and De La Rosa engaged in sham tactics to achieve an appealable final judgment. The resolution of the present case was not a unilateral dismissal of claims, but <strong>a mutual settlement for consideration reached by both parties which expressly preserved certain claims for appeal</strong>. This case is unlike <em>Baker,</em> where the plaintiffs openly intended to sidestep Rule 23(f) when they voluntarily dismissed their claims.</p>
</blockquote>
<p>Slip op. at 5 (emphasis added).&#0160; For these reasons, the panel denied the defendants&#39; motion to dismiss the appeal.&#0160;</p>
<p>In a separate, <a href="https://cdn.ca9.uscourts.gov/datastore/memoranda/2017/12/07/16-15377.pdf">unpublished opinion</a>, the panel reversed the order denying class certification, apparently because the district court had ruled &quot;on the basis of the pleadings,&quot; without the benefit of evidentiary submissions that would allow a full &quot;Rule 23 analysis.&quot;</p>Appellate practiceClass actions - generalKimberly A. KralowecFri, 08 Dec 2017 04:00:00 -0800Interesting UCL "unlawful" prong opinion: <em>Burd v. Barkley Court Reporters, Inc.</em>http://www.uclpractitioner.com/2017/12/interesting-ucl-unlawful-prong-opinion-burd-v-barkley-court-reporters-inc.html
http://www.uclpractitioner.com/2017/12/interesting-ucl-unlawful-prong-opinion-burd-v-barkley-court-reporters-inc.htmlIn Burd v. Barkley Court Reporters, Inc., ___ Cal.App.5th ___ (Nov. 29, 2017), the Court of Appeal (Second Appellate District, Division Two) considered a UCL "unlawful" prong class action predicated on violations of Government Code sections 69950 and 69954, which...<p>In <a href="http://www.courts.ca.gov/opinions/documents/B271694.DOC"><em>Burd v. Barkley Court Reporters, Inc.</em></a>, ___ Cal.App.5th ___ (Nov. 29, 2017), the Court of Appeal (Second Appellate District, Division Two) considered a UCL &quot;unlawful&quot; prong class action predicated on violations of Government Code sections 69950 and 69954, which limit court reporter transcription rates.&#0160;</p>
<p>The Court held that the statutory rate limitations &quot;apply to any court reporter producing a transcript of a civil court proceeding, regardless of whether the reporter is employed by the superior court or privately retained by a party.&quot;&#0160; Slip op. at 1.&#0160;</p>
<p>Sounds like we might all need to go back and check our recent court reporter invoices.</p>UCL - "unlawful" prongKimberly A. KralowecTue, 05 Dec 2017 04:00:00 -0800New class certification opinion: <em>Hefczyc v. Rady Children's Hospital-San Diego</em>http://www.uclpractitioner.com/2017/11/new-class-certification-opinion-hefczyc-v-rady-childrens-hospital-san-diego.html
http://www.uclpractitioner.com/2017/11/new-class-certification-opinion-hefczyc-v-rady-childrens-hospital-san-diego.htmlIn Hefczyc v. Rady Children's Hospital-San Diego, ___ Cal.App.5th ___ (Nov. 17, 2017), the Court of Appeal (Fourth Appellate District, Division One) affirmed the trial court's denial of class certification in a declaratory relief action. The opinion's main holding is...<p>In <a href="http://www.courts.ca.gov/opinions/documents/D071264.DOC"><em>Hefczyc v. Rady Children&#39;s Hospital-San Diego</em></a>, ___ Cal.App.5th ___ (Nov. 17, 2017), the Court of Appeal (Fourth Appellate District, Division One) affirmed the trial court&#39;s denial of class certification in a declaratory relief action.&#0160; The opinion&#39;s main holding is that Code of Civil Procedure section 382 does not have an equivalent to Federal Rule of Civil Procedure 23(b)(1)(A) or (b)(2), the elements of which are less onerous for declaratory or injunctive relief actions than for damages actions.&#0160; <em>See</em> slip op. at 11-25.&#0160;</p>
<p>As a result, section 382&#39;s usual requirements apply to declaratory relief, injunctive relief and damages actions alike:</p>
<blockquote>
<p>[T]here is no gap in California precedent to be filled by reference to Federal Rules of Civil Procedure, rule 23(b)(1)(A) or (b)(2) (28 U.S.C.) on the issue of what class certification standards must be met when a plaintiff seeks only declaratory or injunctive relief on behalf of a class.&#0160; Even when the plaintiff seeks solely declaratory or injunctive relief, California case law follows the well-established requirements that our Supreme Court has consistently stated, namely, (as relevant here) that the plaintiff must establish that (1) the class is ascertainable; (2) common questions predominate; and (3) a class action would provide substantial benefits, making it superior to other procedures for&#0160;resolving the controversy.</p>
</blockquote>
<p><em>Id.</em> at 24-25.&#0160;</p>Class actions - certificationKimberly A. KralowecWed, 29 Nov 2017 04:00:00 -0800New opinion confirms UCL and CLRA remedies are cumulative to each other: <em>Flores v. Southcoast Automotive Liquidators, Inc.</em>http://www.uclpractitioner.com/2017/11/new-opinion-confirms-ucl-and-clra-remedies-are-cumulative-to-each-other-flores-v-southcoast-automoti.html
http://www.uclpractitioner.com/2017/11/new-opinion-confirms-ucl-and-clra-remedies-are-cumulative-to-each-other-flores-v-southcoast-automoti.htmlIn Flores v. Southcoast Automotive Liquidators, Inc., ___ Cal.App.5th ___ (Nov. 27, 2017), the Court of Appeal (Second Appellate District, Division Five) held that "an appropriate correction offer under the Consumers Legal Remedies Act (CLRA; Civ. Code, § 1750 et...<p>In <a href="http://www.courts.ca.gov/opinions/documents/B268271.DOC"><em>Flores v. Southcoast Automotive Liquidators, Inc.</em></a>, ___ Cal.App.5th ___ (Nov. 27, 2017), the Court of Appeal (Second Appellate District, Division Five) held that &quot;an appropriate correction offer under the Consumers Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.) does not prevent a consumer from pursuing causes of action for fraud and violation of the UCL based on the same conduct, because the remedies are cumulative.&quot;&#0160; Slip op. at 2 (footnote omitted).&#0160; </p>
<p><a href="#_ftnref1" name="_ftn1"></a></p>The CLRAUCL - remedies in generalKimberly A. KralowecTue, 28 Nov 2017 04:00:00 -0800UCL insurance opinion: <em>The Traveler's Property Cas. Co. v. Actavis, Inc.</em>http://www.uclpractitioner.com/2017/11/ucl-insurance-opinion-the-travelers-property-cas-co-v-actavis-inc.html
http://www.uclpractitioner.com/2017/11/ucl-insurance-opinion-the-travelers-property-cas-co-v-actavis-inc.htmlIn The Traveler's Property Cas Co. v. Actavis, Inc., ___ Cal.App.5th ___ (Nov. 6, 2017), the Court of Appeal (Fourth Appellate District, Division Three) considered whether the defendant pharmaceutical companies' CGL insurance policies required the insurers to defend a UCL...<p>In <a href="http://www.courts.ca.gov/opinions/documents/G053749.DOCX"><em>The Traveler&#39;s Property Cas Co. v. Actavis, Inc.</em></a>, ___ Cal.App.5th ___ (Nov. 6, 2017), the Court of Appeal (Fourth Appellate District, Division Three) considered whether the defendant pharmaceutical companies&#39; CGL insurance policies required the insurers to defend a UCL &quot;public prosecutor&quot; action brought by Santa Clara and Orange Counties.&#0160; The complaint alleges that the defendants&#39; opioid marketing campaigns, instituted in the 1990s to &quot;increase sales of opioids and enhance corporate profits,&quot; were deceptive, unfair and unlawful.&#0160; The Court of Appeal found no duty to defend the action (or a similar action brought by the City of Chicago).&#0160;</p>
<p>The complaint in the underlying UCL action is available at <a href="https://assets.documentcloud.org/documents/1279495/opioids-complaint.pdf">this link</a>.</p>UCL - public prosecutor actionsUCL - remedies in generalKimberly A. KralowecWed, 15 Nov 2017 04:00:00 -0800Class action objector case also set for argument in November: <em>Hernandez v. Restoration Hardware, Inc.</em>http://www.uclpractitioner.com/2017/10/class-action-objector-case-also-set-for-argument-in-november-hernandez-v-restoration-hardware-inc.html
http://www.uclpractitioner.com/2017/10/class-action-objector-case-also-set-for-argument-in-november-hernandez-v-restoration-hardware-inc.htmlLast week, the Supreme Court also announced that Hernandez v. Restoration Hardware, Inc., No. S233983, will be orally argued on Tuesday, November 7, 2017 at 10:00 a.m. in Sacramento. In fact, this case is first on the list, so it...<p>Last week, the Supreme Court also <a href="http://www.courts.ca.gov/documents/SNOV717B.pdf">announced</a> that <em><a href="http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&amp;doc_id=2139237&amp;doc_no=S233983">Hernandez v. Restoration Hardware, Inc.</a></em>, No. S233983, will be orally argued on Tuesday, November 7, 2017 at 10:00 a.m. in Sacramento. In fact, this case is first on the <a href="http://www.courts.ca.gov/documents/SNOV717B.pdf">list</a>, so it will be argued before <a href="http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&amp;doc_id=2091800&amp;doc_no=S222314"><em>Solus</em></a> (which I <a href="http://www.uclpractitioner.com/2017/10/supreme-court-schedules-ucl-case-for-argument-in-november-solus-industrial-innovations-v-superior-co.html">discussed yesterday</a>).</p>
<p>This case presents the following issue, according to the docket:</p>
<blockquote>
<p>Must an unnamed class member intervene in the litigation in order to have standing to appeal? (See&#0160;<em><a href="https://scholar.google.com/scholar_case?case=16332299903022053357">Eggert v. Pac. States S. &amp; L. Co.</a></em> (1942) 20 Cal.2d 199.)</p>
</blockquote>
<p>(Hyperlink added.)&#0160; The Court of Appeal said <em>yes,</em> and dismissed, for lack of jurisdiction, an objector&#39;s appeal from a post-trial judgment in a class action.&#0160; <a href="https://scholar.google.com/scholar_case?case=1718197667065229274"><em>Hernandez v. Restoration Hardware, Inc.</em></a>, 245 Cal.App.4th 651 (2016), <em>review granted</em>.&#0160; The objector wished to challenge the amount of fees awarded to class counsel from the $36 million common fund created when the jury entered its verdict in favor of the class.&#0160; <em>See id.&#0160; <br /></em></p>
<p>Here is <a href="http://www.uclpractitioner.com/2016/08/supreme-court-takes-up-appellate-standing-issue-hernandez-v-restoration-hardware.html">my blog post</a> on the Court of Appeal&#39;s opinion, and copies of the merits briefs are available <a href="http://www.courts.ca.gov/37647.htm">at this link</a>.&#0160; Interestingly, the objector in this case is represented by the same counsel who represented the objector (unsuccessfully) in <a href="https://scholar.google.com/scholar_case?case=13128613438023070423"><em>Laffitte v. Robert Half International, Inc.</em></a>, 1 Cal.5th 480 (2016) (discussed in <a href="http://www.uclpractitioner.com/2016/08/supreme-court-confirms-percentage-method-is-alive-and-well-in-common-fund-cases-laffitte-v-robert-ha.html">this blog post</a>).&#0160;</p>Appellate practiceClass actions - Supreme CourtKimberly A. KralowecThu, 19 Oct 2017 04:00:00 -0700Supreme Court schedules UCL case for argument in November: <em>Solus Industrial Innovations v. Superior Court (People)</em>http://www.uclpractitioner.com/2017/10/supreme-court-schedules-ucl-case-for-argument-in-november-solus-industrial-innovations-v-superior-co.html
http://www.uclpractitioner.com/2017/10/supreme-court-schedules-ucl-case-for-argument-in-november-solus-industrial-innovations-v-superior-co.htmlLast week, the Supreme Court announced that a UCL public prosecutor action, in which review was granted in 2015, will be orally argued on November 7, 2017 at 10:00 a.m. during the Court's special session in Sacramento. Solus Industrial Innovations...<p>Last week, the Supreme Court announced that a UCL public prosecutor action, in which review was granted in 2015, will be orally argued on November 7, 2017 at 10:00 a.m. during the Court&#39;s special session in Sacramento.&#0160; <a href="http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&amp;doc_id=2091800&amp;doc_no=S222314" target="_self"><em>Solus Industrial Innovations v. Superior Court (People)</em></a>, No. S222314.&#0160;&#0160;</p>
<p>For a discussion of the procedural history of this case, see these two <a href="http://www.uclpractitioner.com/2015/01/supreme-court-takes-up-ucl-public-prosecutor-action-solus-industrial-innovations-v-superior-court.html">blog</a> <a href="http://www.uclpractitioner.com/2014/07/grant-and-transfer-ordered-in-ucl-public-prosecutor-action-solus-industrial-innovations-v-superior-.html">posts</a>.&#0160; The Court of Appeal held that federal law (namely, Fed/OSHA) preempted the Orange County District Attorney&#39;s UCL and FAL prong claims, which are predicated in part on asserted violations of state workplace safety standards (<em>i.e.</em>, Cal/OSHA).&#0160; <a href="http://www.courts.ca.gov/opinions/revpub/G047661N.DOC" target="_self"><em>Solus Industrial Innovations LLC v. Superior Court (People)</em></a>, 229 Cal.App.4th 1291 (2014), <em>review granted</em>. &#0160;</p>
<p>Copies of the Supreme Court briefs can be obtained <a href="http://www.courts.ca.gov/37647.htm">at this link</a>.&#0160;</p>UCL - preemptionUCL - public prosecutor actionsUCL - Supreme CourtKimberly A. KralowecWed, 18 Oct 2017 04:00:00 -0700San Francisco City Attorney invokes UCL in suit against Equifaxhttp://www.uclpractitioner.com/2017/09/san-francisco-city-attorney-invokes-ucl-in-suit-against-equifax.html
http://www.uclpractitioner.com/2017/09/san-francisco-city-attorney-invokes-ucl-in-suit-against-equifax.htmlYesterday, San Francisco City Attorney Dennis Herrera filed suit in San Francisco Superior Court against Equifax. The complaint has a single cause of action: for violation of the UCL. In particular, the complaint alleges a series of UCL "unlawful" prong...<p>Yesterday, San Francisco City Attorney Dennis Herrera <a href="https://www.sfcityattorney.org/2017/09/26/herrera-sues-equifax-massive-data-breach/">filed suit</a> in San Francisco Superior Court against Equifax.&#0160; The <a href="https://www.sfcityattorney.org/wp-admin/admin-ajax.php?action=outofthebox-download&amp;OutoftheBoxpath=%2FFile%20Stamped%20complaint%20with%20exhibits.pdf&amp;lastpath=%2F&amp;listtoken=ce8086b09409f3d7db0bd7cc1389ba55&amp;dl=1">complaint</a> has a single cause of action: for violation of the UCL. In particular, the complaint alleges a series of UCL &quot;unlawful&quot; prong violations.</p>
<p>The <em>Chronicle</em> has <a href="http://www.sfchronicle.com/bayarea/article/SF-first-city-to-sue-Equifax-credit-agency-over-12230127.php">more</a> on this action and the other Equifax data breach cases.</p>UCL - public prosecutor actionsKimberly A. KralowecWed, 27 Sep 2017 04:00:00 -0700Insurance bad faith and the UCLhttp://www.uclpractitioner.com/2017/09/insurance-bad-faith-and-the-ucl.html
http://www.uclpractitioner.com/2017/09/insurance-bad-faith-and-the-ucl.htmlThe September 2017 issue of Plaintiff magazine has an article by Jeffrey I. Ehrlich called "Be an insurance Myth Buster!" One of the busted myths relates to the UCL. The myth is this: "An insurer's breach of its common-law duties...<p>The September 2017 issue of <a href="http://www.plaintiffmagazine.com/recent-issues/item/be-an-insurance-myth-buster"><em>Plaintiff</em></a> magazine has an article by Jeffrey I. Ehrlich called &quot;<a href="http://www.plaintiffmagazine.com/recent-issues/item/be-an-insurance-myth-buster">Be an insurance Myth Buster!</a>&quot;&#0160; One of the busted myths relates to the UCL.&#0160; The myth is this:&#0160; &quot;An insurer&#39;s breach of its common-law duties cannot support a claim under the UCL.&quot;&#0160;</p>
<p>As explained in Jeffrey&#39;s article, the California Supreme Court busted this myth in 2013, in <a href="https://scholar.google.com/scholar_case?case=17119382967004324160"><em>Zhang v. Superior Court</em></a>, 57 Cal.4th 364 (2013) (discussed <a href="http://www.uclpractitioner.com/2013/08/supreme-court-holds-insurance-companies-enjoy-no-special-immunity-from-ucl-liability-zhang-v-superio.html">here</a>).&#0160; Click over to <a href="http://www.plaintiffmagazine.com/recent-issues/item/be-an-insurance-myth-buster">Jeffrey&#39;s piece</a> for more.&#0160;</p>News reports and practice articlesUCL - "fraudulent" prongUCL - "unfair" prongUCL - "unlawful" prongKimberly A. KralowecThu, 21 Sep 2017 04:00:00 -0700Ninth Circuit holds Rule 23(f) time limit not jurisdictional: <em>Lambert v. Neutraceutical Corp.</em>http://www.uclpractitioner.com/2017/09/ninth-circuit-holds-rule-23f-time-limit-not-jurisdictional-lambert-v-neutraceutical-corp.html
http://www.uclpractitioner.com/2017/09/ninth-circuit-holds-rule-23f-time-limit-not-jurisdictional-lambert-v-neutraceutical-corp.htmlIn Lambert v. Neutraceutical Corp., ___ F.3d ___ (9th Cir. Sept. 14, 2017), the Ninth Circuit considered a UCL, FAL and CLRA action against the manufacturer of an "aphrodisiac dietary supplement." Slip op. at 5. The complaint alleged that the...<p>In <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/15/15-56423.pdf"><em>Lambert v. Neutraceutical Corp.</em></a>, ___ F.3d ___ (9th Cir. Sept. 14, 2017), the Ninth Circuit considered a UCL, FAL and CLRA action against the manufacturer of an &quot;aphrodisiac dietary supplement.&quot;&#0160; Slip op. at 5.&#0160; The complaint alleged that the defendant sold the product in violation of certain FDA regulations and that the product was falsely labeled.&#0160; <em>Id.&#0160; </em></p>
<p>The district court &quot;initially granted class certification on the basis of the full refund damages model. That model applies when a product is shown to be worthless, and damages may be calculated by multiplying the average retail price by the number of units sold.&quot;&#0160; <em>Id.</em> at 6.&#0160; Subsequently, the defendant moved to decertify the class, and a different judge granted the motion.&#0160; <em>Id.&#0160; </em>Plaintiff moved for reconsideration, which was denied.&#0160; <em>Id.</em> at 7.&#0160; Within 14 days thereafter, plaintiff filed a Rule 23(f) petition.&#0160; <em>Id.</em> at 8.&#0160;</p>
<p>The Ninth Circuit held that the fourteen-day deadline to file a Rule 23(f) petition is &quot;not jurisdictional, thus equitable exceptions apply.&quot;&#0160; Slip op. at 1.&#0160; In particular, &quot;a motion for reconsideration filed within the Rule 23(f) deadline will toll the deadline,&quot; as will &quot;additional equitable circumstances.&quot;&#0160; <em>Id.</em> at 1, 10.&#0160; In a lengthy discussion, the Court concluded that the plaintiff&#39;s Rule 23(f) petition was timely.&#0160; <em>Id.</em> at 9-21.</p>
<p>Then, the Court turned to the merits, and held that the district court erred in granting the defendant&#39;s motion to decertify the class.&#0160; Slip op. at 21-25.&#0160; Variations in damages do not defeat class certification; UCL, FAL, and CLRA damages (or restitution) calculations need not be precise; and the plaintiff&#39;s proposed &quot;full refund&quot; damages model was a &quot;workable method&quot; to determine and award damages.&#0160; <em>See id.</em></p>
<p>This analysis relies heavily on <a href="https://scholar.google.com/scholar_case?case=11462480241560261637"><em>Pulaski &amp; Middleman, LLC v. Google, Inc.</em></a>, 802 F.3d 979 (9th Cir. 2015) (discussed in <a href="http://www.uclpractitioner.com/2015/09/new-ninth-circuit-class-certification-opinion-pulaski-middleman-llc-v-google-inc.html">this blog post</a>) and <a href="https://scholar.google.com/scholar_case?case=2928716827778884783"><em>Leyva v. Medline Industries Inc.</em></a>, 716 F.3d 510 (9th Cir. 2013) (discussed <a href="http://www.uclpractitioner.com/2013/06/circuits-reversal-in-wage-case-complicates-comcast.html">here</a>).</p>Class actions - certificationUCL - class certificationUCL - federal decisionsKimberly A. KralowecMon, 18 Sep 2017 04:00:00 -0700Interesting webinar next week on UCL and CLRA omissions caseshttp://www.uclpractitioner.com/2017/09/interesting-webinar-next-week-on-ucl-and-clra-omissions-cases.html
http://www.uclpractitioner.com/2017/09/interesting-webinar-next-week-on-ucl-and-clra-omissions-cases.htmlNext Wednesday, September 20, 2017, from noon to 1:00 p.m., the Antitrust, UCL and Privacy Section of the State Bar of California will hold a webinar entitled: "Material Omission Claims Under California's UCL, FAL, and CLRA." The program "will offer...<p>Next Wednesday, September 20, 2017, from noon to 1:00 p.m., the <a href="http://www.calbar.ca.gov/Attorneys/Sections/Antitrust">Antitrust, UCL and Privacy Section</a> of the State Bar of California will hold&#0160; a webinar entitled: &quot;<a href="https://calbar.inreachce.com/Details?groupId=443331f1-8e97-4c97-a8a0-cca4f5764db0">Material Omission Claims Under California&#39;s UCL, FAL, and CLRA</a>.&quot;&#0160;</p>
<p>The program &quot;will offer plaintiff and defense perspectives on the issues that arise when your case involves a material omission cause of action under the California statutes, including discussion of recent appellate decisions.&quot;&#0160; The speakers are my good friend <a href="https://www.hbsslaw.com/attorneys/senior-counsel/kevin-k-green-senior-counsel">Kevin Green</a> of Hagens Berman, who will provide the plaintiffs&#39; perspective, along with <a href="http://www.gibsondunn.com/lawyers/tloose">Timothy W. Loose</a> of Gibson, Dunn and Crutcher, on the defense side. &#0160;&#0160;</p>
<p>This sounds like a very interesting program.&#0160; For more information and to register, <a href="https://calbar.inreachce.com/Details?groupId=443331f1-8e97-4c97-a8a0-cca4f5764db0">click here</a>.&#0160;</p>MCLE programsKimberly A. KralowecWed, 13 Sep 2017 04:00:00 -0700Supreme Court depublishes class certification opinion: <em>Bartoni v. American Medical Response West</em>http://www.uclpractitioner.com/2017/08/supreme-court-depublishes-class-certification-opinion-bartoni-v-american-medical-response-west.html
http://www.uclpractitioner.com/2017/08/supreme-court-depublishes-class-certification-opinion-bartoni-v-american-medical-response-west.htmlYesterday, the Supreme Court issued an order depublishing the Court of Appeal's opinion in Bartoni v. American Medical Response West, 11 Cal.App.5th 1084 (2017). Under Rule of Court 8.1115, the opinion is no longer a citable precedent. In Bartoni, the...<p>Yesterday, the Supreme Court issued an order depublishing the Court of Appeal&#39;s opinion in <a href="https://scholar.google.com/scholar_case?case=15608572944490537206"><em>Bartoni v. American Medical Response West</em></a>, 11 Cal.App.5th 1084 (2017)<em>.</em>&#0160; Under <a href="http://www.courts.ca.gov/cms/rules/index.cfm?title=eight&amp;linkid=rule8_1115">Rule of Court 8.1115</a>, the opinion is no longer a citable precedent.&#0160;</p>
<p>In <em>Bartoni,</em> the plaintiffs alleged that their employer required them to remain &quot;on call&quot; at all times, including during all meal periods. The trial court denied their motion for class certification, holding that an &quot;on-call&quot; meal period was compliant unless actually interrupted, and that as a result, non-common questions predominated.&#0160; The Court of Appeal agreed, and affirmed.&#0160; 11 Cal.App.5th at 1092, 1101-02.&#0160; (The Court of Appeal reversed a similar ruling as to the rest break claim.&#0160; <em>Id.</em> at 1102.)&#0160;</p>
<p>The depublication requests, one of which was filed by yours truly, argued that this holding was inconsistent with <em>Augustus</em> and <em>Brinker</em>, which together held that meal periods (and rest breaks), to be compliant, must be entirely &quot;off-duty,&quot; and that an &quot;on-call&quot; meal period (or rest break) is not an &quot;off-duty&quot; one.&#0160; <em>See <a href="https://scholar.google.com/scholar_case?case=15764375642309732416">Augustus v. ABM Security Services, Inc.</a></em>, 2 Cal.5th 257, 269-72 (2016) (citing <a href="https://scholar.google.com/scholar_case?case=10842765792974217876"><em>Brinker Restaurant Corp. v. Superior Court</em></a>, 53 Cal.4th 1004, 1039-40 (2012)).&#0160;</p>
<p>The <em>Bartoni</em> opinion was reminiscent of several post-<em>Brinker</em> opinions that the Supreme Court depublished in 2012 and 2013.&#0160; See these <a href="http://www.uclpractitioner.com/2012/12/supreme-court-depublishes-two-post-brinker-opinions-lamps-plus-overtime-cases-and-hernandez-v-chipot.html">blog</a> <a href="http://www.uclpractitioner.com/2013/01/supreme-court-depublishes-another-post-brinker-opinion-tien-v-tenet-healthcare-corp.html">posts</a> for more on those depublication orders. &#0160;[Disclosure: I am co-counsel of record for the plaintiffs in <em>Bartoni</em>.]&#0160;</p>Class actions - certificationClass actions - Supreme CourtKimberly A. KralowecThu, 31 Aug 2017 04:00:00 -0700New UCL, FAL and CLRA opinion: <em>Rubenstein v. The Gap, Inc.</em>http://www.uclpractitioner.com/2017/08/new-ucl-fal-and-clra-opinion-rubenstein-v-the-gap-inc.html
http://www.uclpractitioner.com/2017/08/new-ucl-fal-and-clra-opinion-rubenstein-v-the-gap-inc.htmlIn Rubenstein v. The Gap, Inc., ___ Cal.App.5th ___ (Aug. 24, 2017), the plaintiff alleged that the defendant should have disclosed that clothing sold at its "Factory Stores" (including Gap and Banana Republic factory stores) was of inferior quality compared...<p>In <a href="http://www.courts.ca.gov/opinions/documents/B272356.DOCX"><em>Rubenstein v. The Gap, Inc.</em></a>, ___ Cal.App.5th ___ (Aug. 24, 2017), the plaintiff alleged that the defendant should have disclosed that clothing sold at its &quot;Factory Stores&quot; (including Gap and Banana Republic factory stores) was of inferior quality compared to the clothing sold at its &quot;traditional&quot; stores, and that the lesser-quality merchandise had never been offered for sale at the &quot;traditional&quot; stores.&#0160; Slip op. at 2-3.&#0160; The trial court sustained the defendant&#39;s demurrer without leave to amend.&#0160; <em>Id.</em> at 4.<em><br /></em></p>
<p>The Court of Appeal (Second Appellate District, Division One) held, as a matter of law, on the pleadings, that this conduct did not violate the FAL, the UCL, or the CLRA:</p>
<blockquote>
<p>As a matter of law, Gap’s use of its own brand name labels on clothing that it manufactures and sells at Gap-owned stores is not deceptive, regardless of the quality of the merchandise or whether it was ever for sale at other Gap-owned stores.&#0160; Retailers may harm the value of their brands by selling inferior merchandise at factory stores, but doing so does not constitute false advertising.&#0160; Under these allegations, the trial court properly dismissed the FAL cause of action.</p>
</blockquote>
<p>&#0160;Slip op. at 6-7.&#0160; The Court&#39;s reasoning was similar for the UCL claim:</p>
<blockquote>
<p>As explained in discussing the FAL cause of action, the SAC alleges no statement by Gap about the quality of factory store merchandise or that it was previously for sale in traditional Gap-owned stores.&#0160; Gap’s use of its own brand names in factory store names and on factory store clothing labels is not likely to deceive a reasonable consumer for the simple reason that a purchaser is still getting a Gap or Banana Republic item.&#0160;&#0160;</p>
</blockquote>
<p><em>Id.</em> at 8.&#0160;&#0160; </p>
<p>The opinion goes on to say this:&#0160;</p>
<blockquote>
<p>The SAC states that “[r]easonable consumers believe outlet stores sell products that were previously available for purchase at retail stores,” but alleges no facts showing this to be true.&#0160; Moreover, a consumer for whom the retail history of factory store items is material can ask Gap employees about this.&#0160; A reasonable consumer would also inspect the quality of factory store clothing items before buying them and could return items after purchase if they turn out to be unsatisfactory.&#0160; In the end, the allegation that Gap is not living up to the quality standards it has set for Gap and Banana Republic brands fails to state a cause of action for a fraudulent business practice under the UCL.</p>
</blockquote>
<p><em>Id</em>.&#0160; </p>
<p>This part of the Court&#39;s reasoning appears to me inconsistent with a number of principles articulated in <em>Kwikset</em>.&#0160; The Court even says that it is rejecting a series of contrary arguments made by the Attorney General in an amicus curiae brief in support of the plaintiff.&#0160; <em>See</em> slip op. at 10-12.&#0160;</p>
<p>On the UCL &quot;unfair&quot; prong claim, the Court applied the &quot;section 5&quot; test, without acknowledging the three-way split in authority (see <a href="http://www.uclpractitioner.com/2013/03/new-ucl-unfair-prong-opinion-west-v-jp-morgan-chase.html">this blog post</a>).&#0160; Slip op. at 13 (citing <em>Klein v. Chevron U.S.A., Inc.</em>, 202 Cal.App.4th 1342 (2012); <em>Camacho v. Automobile Club of Southern California</em>, 142 Cal.App.4th 1394 (2006)).&#0160;</p>
<p>Under the &quot;section 5&quot; test:</p>
<blockquote>
<p>“[A] business practice is ‘unfair’ if (1) the consumer injury is substantial; (2) the injury is not outweighed by any countervailing benefits to consumers or competition; and (3) the injury could not reasonably have been avoided by consumers themselves.”&#0160; (<em>Klein</em>, at p. 1376 &amp; fn. 14 [applying and following <em>Camacho</em>].)</p>
<p>The SAC fails to allege an unfair business practice.&#0160; The injury alleged is not substantial because consumers are getting Gap and Banana Republic brand name items for low prices, and there is no allegation that Gap ever made any representations about the retail history or quality of factory store merchandise.&#0160; A consumer who cared about whether the items were identical to other Gap merchandise could have asked a sales associate whether this is true.&#0160; As for any quality issues, consumers could have examined factory store apparel before purchasing it, read the clothing labels for materials used in manufacture, and returned merchandise after purchase if it was unsatisfactory.&#0160; Indeed, [the plaintiff] does not allege that any of the clothing items she purchased at Gap and Banana Republic Factory Stores had any quality issues.</p>
</blockquote>
<p>Slip op. at 13-14.&#0160; I have to respectfully disagree with this analysis.&#0160; The allegation is that the stores are using their brand names to pass off inferior merchandise--<em>not</em> that the merchandise has obvious defects in materials or workmanship.&#0160; If it did, and the customer returned it, the deception would have been insufficiently subtle, and would have failed.&#0160; A merchant should not be allowed to get away with concealing material information by instituting a return policy, or one that says, &quot;We&#39;ll tell you the truth but only if you ask.&quot; &#0160;&#0160;</p>
<p>Finally, the Court found no CLRA violation because no affirmative misrepresentations were made and the defendant had no duty to disclose.&#0160; Slip op. at 14-15.&#0160;</p>The CLRAUCL - "fraudulent" prongUCL - "unfair" prongKimberly A. KralowecMon, 28 Aug 2017 04:00:00 -0700New class arbitration opinion: <em>Sprunk v. Prisma LLC</em>http://www.uclpractitioner.com/2017/08/new-class-arbitration-opinion-sprunk-v-prisma-llc.html
http://www.uclpractitioner.com/2017/08/new-class-arbitration-opinion-sprunk-v-prisma-llc.htmlIn Sprunk v. Prisma LLC, ___ Cal.App.5th ___ (Aug. 23, 2017), the Court of Appeal (Second Appellate District, Division One) held that the defendant "waived its right to seek arbitration by filing and then withdrawing a motion to compel arbitration...<p>In <a href="http://www.courts.ca.gov/opinions/documents/B268755.DOC"><em>Sprunk v. Prisma LLC</em></a>, ___ Cal.App.5th ___ (Aug. 23, 2017), the Court of Appeal (Second Appellate District, Division One) held that the defendant &quot;waived its right to seek arbitration by filing and then withdrawing a motion to compel arbitration against the named plaintiff, Maria Elena Sprunk, and then waiting until after a class had been certified to seek arbitration against class members.&quot;&#0160; Slip op. at 2.&#0160;</p>
<p><strong>UPDATE:</strong>&#0160; Scott Leviant has a more detailed discussion (&quot;<a href="http://thecomplexlitigator.com/post-data/2017/8/24/arbitration-bid-sunk-in-sprunk">Arbitration sunk&#0160; in <em>Sprunk</em></a>&quot;) over at <em>The Complex Litigator</em>.</p>Class actions - arbitrationKimberly A. KralowecFri, 25 Aug 2017 04:00:00 -0700"The U.S. Supreme Court Has Misinterpreted the Federal Arbitration Act"http://www.uclpractitioner.com/2017/08/the-us-supreme-court-has-misinterpreted-the-federal-arbitration-act.html
http://www.uclpractitioner.com/2017/08/the-us-supreme-court-has-misinterpreted-the-federal-arbitration-act.htmlOver at SCOCAblog, an article by William T. Newman posted earlier this week has an interesting take on Concepcion.<p>Over at <a href="http://www.scocablog.com"><em>SCOCAblog</em></a>, an <a href="http://scocablog.com/the-u-s-supreme-court-has-misinterpreted-the-federal-arbitration-act/">article</a> by William T. Newman posted earlier this week has an interesting take on <em>Concepcion</em>.&#0160;</p>Class actions - arbitrationNews reports and practice articlesKimberly A. KralowecThu, 24 Aug 2017 04:00:00 -0700